On August 29, 2016 new rules took effect that makes a huge change in family immigration. Now, anyone who is legally eligible for an unlawful presence waiver can now apply for a provisional waiver in the United States.
Q. What is the change?
A. Before August 29, 2016 only people whose family had a U.S. Citizen spouse or parent could apply for the I-601A waiver. Also, they were not allowed to apply if they had a removal order (deportation). After August 29, 2016 a person whose family has a spouse or parent who is a citizen or a green card holder can apply.
Also, people with deportation orders can now apply for Permission to Reapply (I-212) and apply for the I-601A after the I-212 is conditionally approved.
Q, Who needs an I-601A Waiver?
A.People who came to the United States without a visa, crossed the border illegally, or otherwise did not “enter with inspection.” OR, a person who is barred from adjusting status under INA 245(c) but still has an approved immigrant petition and still has a qualifying relative for the I-601A.
Example 1: Pierre entered the United States illegally with no visa. He is married to a U.S. Citizen and has an approved I-130.
Example 2: Jack overstayed his student visa (F-1). He married a Becky, a green card holder, and Becky has an approved and current I-130 for Jack. For whatever reason, Becky cannot become a citizen. Therefore Jack cannot adjust status because of INA 245(c) and must go to the consulate.
Q. Who is eligible for the expanded I-601A Waiver?
A. Anyone who:
Q. What I have a deporation order?
A. A person with an unexecuted removal order (they never left, and did not reenter the US after a prior deportation) can apply for Permission to Reapply on Form I-212 before they apply for the I-601A, Before this, a person with a removal order could not apply for the I-601A, they either had to have a lawyer file a Motion to Reopen with the Immigration Court, or they had to leave and ask for forgiveness in their country of citizenship (this was not a popular option).
Now, a person with an unexecuted removal order can apply for the I-212, receive conditional approval, and then file for the I-601A waiver.
Thoughts from Attorney Jamie Gorton:
The Good
This is a very large change in policy and aligns the immigration regulations more into line with the actual immigration law found at INA §212(a)(9)(b)(iii)(V). Prior to this, the regulations provided a narrower benefit than the law provides. USCIS has graduated from seemingly debuting the “provisional” waiver on a “provisional” basis, and now offers a much more impactful program.
The impact should not be doubted – any immigration lawyer should be able to develop a healthy list of current and former clients whose lives just became easier and brighter because of this immigration rule change.
There will likely be additional reprocussions beyond the regulations. The proposed rule makes it clear that the Department of Homeland Security was very concerned with deliniating and enhansing the jurisdiction of USCIS over this family-based process. The rule change allowing for the I-212 / I-601A combo will reduce the burden on our Immigration Courts and the ICE Trial Attorneys, who will face fewer Motions to Reopen.
The Bad
This puts additional pressure on DHS to give attorneys better guidence on the meaning of “extreme hardship.” The immigration bar was optimistic that the guidence would have been issued in the same rulemaking change, but it was not to be. I love making gestalt, totality-of-the-circumstance arguments for my clients, but it does not make for easy or reliable adjudication.
The Ugly
The removal of the “reason to believe” grounds for denial is a technical, minor change that, in my mind, removes an important safety valve from the process. Before this, USCIS would deny an otherwise approvable application because the officer had “reason to believe” that a different ground of inadmissibility applied (typically criminal offenses or a bad immighration history). The logic was that the provisional I-601A would be revoked anyway upon the determination of an additional grounds of inadmissibility, so the denial should just occur stateside. Of course, this had a chilling effect on people pursuing the rest of the process.
